Union of India (UOI) vs Govind Ram

Srinivasachari, J.—This is an appeal against the District Judge, Karimnagar who remanded the case to the trial Court for taking evidence in the case and disposing of the case according to law. This was the suit filed by the Respondent here, for the recovery of damages to the extent of Rs. 1089/15/- on the ground that he had sent a consignment of jute twine from Shalimar to Paddapally and when he took delivery of the consignment he found that there was a shortage of 30 maunds and 16 seers of the commodity sent.

He also stated that the goods had been damaged in transit, in consequence of which he had to sell the goods at a lower price, as a result of which he was put to loss. The Union of India owning the Central Railway by its General Manager, raised various defences and the main defence was that the Plaintiff had not complied with the provisions of section 77, Indian Railways Act, Section 77, Indian Railways Act is to the effect:

A person shall not be entitled to a refund of an over-charge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals on goods delivered to be so carried unless his claim to the refund or compensation has been preferred in writing by him to the railway administration within 6 months from the date of the delivery of animals or goods.

The trial Court raised issues which arose out of the pleadings and one of the issues, issue No. 7 raised by the Court was to the following effect:

whether the notice u/s 77, Railways Act is essential.

The trial Court after hearing the arguments of both the parties, was of the opinion that notice u/s 77, Railways Act was mandatory and because notice as contemplated by Section 77, Railways Act had not been given, the suit was liable to be dismissed. He, therefore, dismissed the suit.

On appeal the learned District Judge while not giving any finding as regards the question of the necessity of notice u/s 77, Railways Act, held that a piece-meal disposal of the suit was bad and he referred to the opinion of the Ex-Chief Justice of this Court, Shri Laxmi Shanker Misra, who opined that the consideration and decision of only one issue at one time was not desirable, as it was likely to prolong the duration of the suit.

Order 14, Rule 2, CPC is clear on this point that where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law alone, it shall try those issues first. Therefore as a matter of convenience, the Court is permitted to take up the issues of law first if it is clearly of the opinion that the whole case could be disposed of on the issues of law alone.

That is to say, where the question goes to the root of the matter, the Court would be justified in trying the issue of law first and disposing of the case without taking evidence. No hard and fast rule could be laid down with regard to this and it must be a matter left to the discretion of the trying Judge. I am, therefore, not in agreement with the District Judge that having regard to the facts of the case, it was necessary to record the evidence before the suit could be disposed of.

Shri Shrivastava advocate who appears for the Union of India stated before me that he does not press the other defences raised on behalf of the Union of India. The only defence that he sought to press was that the suit was bad for want of notice u/s 77, Indian Railways Act. Therefore if the issuing of notice is obligatory under that section, the suit would be dismissed.

Since Shri Shrivastava advocate states that the other defences were not pressed and this is the only defence, I do not think that any useful purpose would be served by sending the case back to the District Judge, Karimnagar asking him to give his finding on this question of law; that matter could be disposed of by me alone to avoid further delay.

As regards this question the words of the section as they appear make it mandatory and a person before he can become entitled to the damages, should prefer a claim before the Railway Authorities within six months. It is intended to enable the Railway to verify the allegations made and to check up if they are correct, so as to prevent stale and dishonest claims.

Any long delay, might make it impossible for the Railway to trace the transaction and make prompt enquiry. As was observed by Lord Campbell in - ''Garton v. Great Western Rly. Co. (1858) 27 LJ QB 375 (A):

The experience of the Courts abundantly proves the necessity of protecting Railways from groundless litigation and the legislature has given the protection in question.

The fact that the Railway had other means of knowledge of the claim would not dispense with the notice enjoined by Section 77, Railways Act. The words in Section 77, Railways Act are:

A person shall not be entitled to a refund,

which would signify that the provisions are mandatory.

In this case no doubt notice was issued u/s 80, Code of Civil Procedure, Section 80, CPC is ''Notice of the suit has to be given of a suit instituted'' as against the Govt. This is different from Section 77, Railways Act. Notice u/s 80, CPC would not dispense with the notice u/s 77, Railways Act. The one is a notice of suit as against the Government owning the Railway while the object of Section 77, Railways Act as has been observed above is to enable the Railway to facilitate investigation.

Notice u/s 80, CPC is also mandatory. Section 80, as the Privy Council observed, imposes a statutory and unqualified obligation on the Court. ''Vellayan Chettiar v. Govt. of the Province of Madras AIR 1947 PC 197 (B). I would herein cite, the decision of the Mysore High Court reported in - ''Mana- sarovar Agencies v. Governor General in Council AIR 1955 Mys 123 (C) and I might also refer to a decision of our Ex-Chief Justice Misra in the case of - ''Dominion of India v. Modi Sugar Mills Ltd. 1950 All LJ 41 (D), also - Dominion of India Vs. Hazari Lal and Another, (E) and - Governor General in Council and Others Vs. Mahabir Ram and Another, .

I do not see any strong reason to differ from the consistent view expressed by the various High Courts in this regard and I therefore hold that the absence of notice as required by Section 77, Railways Act is fatal to the suit. The suit must therefore be dismissed. The appeal is allowed and the Plaintiff''s suit is dismissed with costs.